• The Law Gazette

Existence of Bigotry Towards Transgender Marriages

The transgender community has been blackballed from the society for the longest time. The amount of stigma associated with them has often gone beyond possible limits. To begin with, how do we exactly define transgender? Kessler and McKenna (1978) explained that men and women are the two main categories of gender on the basis of social criteria. People have often misunderstood for sex and gender to be the same thing. A person’s sex could be female but the gendercould be otherwise. To emphasize more, sex depends on one’s biological features. Any living being is divided into two sexes and in rare cases; some people are born with ambiguous genetalia (intersex). But when we meet a stranger, the gender is attributed to us on the basis of a variety of behaviours, ranging from body language to the way we choose to carry ourselves.[1]


BACKGROUND

Hence when a person identifies themselves to the other sex, it falls under the purview of a transgender. On the other hand, the term transsexual falls under the term of transgender which came into being when medical diagnosis and logic of treatment took shape. Prior to these developments, there can be individuals who feel that their bodies do not represent the gender that they feel more comfortable and closer to, but they are not transsexual.[2] The inequality that is meted out towards the transgender community clearly indicates how on a very basic level, it violates the main part of our golden triangle from the Indian Constitution, i.e. Article 14, right to equality. There have been a lot of instances where they have been denied acceptance from their own families which is why they have been devoid of love and affection ever since they have come out of the closet.


According to Human Rights Campaign Foundation, a survey among transgender in 2018 proved that 41.8% of respondents have attempted suicide at least once in their teen years because of the bullying and harassment they had received at certain point of their lives.[3] In addition to the prejudice, there has been one major obstacle - the institution of marriage. The biggest paradox lies in the fact that in India, where marriages are considered divine, consecrated and a significant part of one’s life, it’s unfortunately still legally inaccessible when it comes to this community. On the other hand, other countries have evolved over the time.


GLOBAL PERSPECTIVE ON TRANSGENDER MARRIAGES

In 1998, the Human Rights Act, also known as Convention Rights, set out a ‘fundamental right to marry’ that everyone in the country was entitled to. This came into force in October 2000. Under Article 12[4], it protects the right of men and women of marriageable age to marry and to start a family. In 2002, the European Court of Human Rights ruled that this right extends to transgender and transsexuals. They were allowed to enter into civil partnerships in their acquired gender owing to Gender Recognition Act 2004.[5] Further, in the case of Attorney – General v. Otahuhu Family Court,[6], (1995) New Zealand, Justice Ellis noted that once a transsexual person has undergone surgery, they no longer can operate in their original sex.


It was further believed that the law has technically no social advantage for not recognising the validity of the marriage of a transsexual in the reassigned sex. Hence, we notice a pattern followed in International Human Rights Law, where many countries have enacted laws for recognising rights of transgender who have undergone, wholly or partially, sex re-assignment surgery. They have provided legal recognition to the acquired gender of a person and provisions highlighting consequences of the newly acquired gender status on their legal rights and entitlements in fields of marriage, succession, parentage, etc.


INDIAN OUTLOOK

According to the conditions required for a valid marriage under section 4 of Special Marriage Act, 1954[7] (The Act), none of the provisions are violated, nor a barrier when marriage takes place between transgender. According to the Principle of Legality of Crimes and Punishments, ‘nulla poenanullapoena sine lege’ specifies that an act is not considered a crime and deserves no punishment, unless the legislator has beforehand announced its criminal title and penalty. If an act is morally rebutted or socially against a public order, it’s not regarded as a crime. Hence, we can conclude that transgender marriage is explicitly not criminalised under the Indian Law. But there is a lack of specific laws for marriage registration. The interpretation of this law got a new meaning with the judgment in the Arun Kumar case[8]. This case reaffirmed that a person belonging to the third category is entitled to remain beyond the duality of male or female or choose to identify oneself as male or female.


This gave clearance to transgender to register their marriages under Section 4(iii) of the Act, which seemed to be a hindrance for them to obtain a legal status post marriage. It upheld the fundamental rights of trans persons to enter into a wedlock under personal laws falling under Article 14, 19 (1) (a), 21 and 25 and allowed the registration of a marriage that was between a cis male and a trans woman. The Court used the principle of statutory interpretation to hold that under Section 5 of Hindu Marriage Act, 1955, the term bride cannot remain unchanged for a long time. It will include trans and inter-sex who identify themselves as woman. This made the complications easier and allowed trans women to marry.


The first example was the marriage between Ishan and Surya in Kerala, who had undergone surgery to become trans man and trans woman respectively. They took their vows as per the Special Marriage Act, 1954.[9] This was followed by Tista Das and Dipan Chakraborty, who got married in Kolkata on the occasion of National Transgender Day of Visibility. Born as male and female respectively, they underwent surgery to change their gender.[10] In the case of Shafin Jahan v. Ashokan KM and ors[11], it was held that the individual has the decision entirely of choosing his partner in a marriage without having the state or court interfere. This is because any involvement by the state is indirectly a violation of exercise of right to freedom. It was added that the right to marry a person of one’s choice is integral to the liberty and dignity guaranteed to persons under Article 21 of our Constitution.


CONCLUSION

It is very evident that laws related to marriage of transgender are prevalent more in other countries than in India. Even though in cases there have been judgments favouring transgender couples, there still lacks defined acts and regulations to provide for safer measures when society does not accept its existence and backlashes at them. Further, the basic rights which otherwise a husband and wife enjoy due to their legal status given by marriage registrations, would then be made available to transgender couples if any act comes forward in the future. They would thereafter be able to live in the society with their head held high instead of hiding from their family out of inhibitions. It would be a step towards equality where they would not have to wait for society’s approval. As rightly opined by Justice Chandrachud in the case of Shafin Jahan, he believed that an individual’s choice should be respected because it is their life.


We agree that progress cannot happen if it’s only the trans people taking efforts by being out in the open, the society has to truly accept the entire transgender community. Matrimonial rights come secondary to the acceptance of the transgender community that they rightly deserve against the maltreatment towards them. Do people have opinions about heterosexuals? Does anybody tell them what kind of life they should live or who to marry? The problem begins when people think they are entitled to decide all of these for them. Though slowly, there have been improvements in our law but there’s always room for progress.


ENDNOTES [1]JOHN ARCHER & BARBARA LLOYD, SEX AND GENDER, 17 (2nd ed., 2002). [2]DR. SUKANTA SARKAR, LGBT RIGHTS: IN HUMAN RIGHTS PERSPECTIVE, 70 (2016). [3]Rokia Hassanein, New Study Reveals Shocking Rates of Attempted Suicide Among Trans Adolescents, HRC.ORG BLOG, (Sept. 12, 2018), https://www.hrc.org/blog/new-study-reveals-shocking-rates-of-attempted-suicide-among-trans-adolescen. [4]Human Rights Act 1998, A. 12 (United Kingdom). [5]Article 12: Right to Marry, EQUALITY & HUMAN RIGHTS COMMISSION, (Nov. 15, 2018), https://www.equalityhumanrights.com/en/human-rights-act/article-12-right-marry. [6]Attorney – General v. Otahuhu Family Court, 1 NZLR 603 (1995). [7]Special Marriage Act, 1954, S. 4 (India). [8]Arun Kumar and Sreeja v. Inspector General of Registration and ors, (2019), WP(MD) No. 4125 of 2019 and WMP(MD) No. 3220 of 2019, (India). [9]Express News Service, Kerala witnesses first transgender marriage, THE INDIAN EXPRESS (May 11, 2018, 04:30 AM), https://indianexpress.com/article/india/kerala-witnesses-first-transgender-marriage-5172148/. [10]Indrajit Kundu, Kolkata gets its first rainbow wedding as transgender couple exchange marriage vows, INDIA TODAY, (Aug. 7, 2019, 07:44 PM), https://www.indiatoday.in/india/story/kolkata-gets-its-first-rainbow-wedding-as-transgender-couple-exchange-marriage-vows-1578360-2019-08-07. [11]Shafin Jahan v. Ashokan KM, (2018), 16 SCC 368, (India).


ABOUT THE AUTHOR

This blog has been authored by Srijita Dutta & Sanchita Pathak, both 4th Year B.A., LL.B. (Hons.) student at ILS Law College, Pune.


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